Tag: provisional

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Supreme Site Services v Shape: Advocate General ØE on Brussels Ia’s scope of application (‘civil and commercial’ in light of claimed immunity. Opinion at odds with CJEU in Eurocontrol.

Update 12 June 2020 Maria has further analysis here.

Many thanks again María Barral for continuing her updates on C-186/19 Supreme Site Services v Shape, on which I reported earlier here and here; see her summary of Thursday’s opinion of the AG below. I just wanted to add two things.

Firstly, the AG’s suggestion that in spite of the intervening Court of Appeal judgment which would seem to make the CJEU case nugatory, the case should continue for against the appeal’s court decision, a further appeal is underway with the Supreme Court.

Second, at 93 etc. the AG advises that the immunity or not of the defendant, bears no relevance to the scope of application of BIa for it does not feature in the concept of ‘civil and commercial’ as developed by the Court.

That in my view is at odds with the CJEU’s very statement in Eurocontrol, at 4: the Court’s seminal judgment on civil and commercial itself in so many words links the scope of application to the practicality of recognition: in Eurocontrol the CJEU interprets ‘civil and commercial’ ‘in particular for the purpose of applying the provisions of Title III of the Convention‘: there is little use bringing issues within the scope of the Convention and now BIa, if ab initio there is no prospect of recognition and enforcement.

In other words I am not at all sure the Court will follow the AG on that part of the analysis. I should emphasise this is my view: María’s review independent of that follows below.

Geert.

 

Immunity does not impact jurisdiction based on Regulation Brussels I bis, AG Saugmandsgaard Øe dixit

María Barral Martínez

Following up on the previous posts (see here and here) discussing the contractual dispute between Supreme site Services v. SHAPE, today’s post addresses  the Opinion of Advocate General Saugmandsgaard Øe in C-186/19 Supreme v Shape.

While the questions posed by the referring court concerned the interpretation of articles 1(1) and 24(5) Brussels Ia, ‘at the CJEU’s request’ (5) limits his analysis to Article 1(1).

In a nutshell, the analysis in his Opinion is twofold: on the one hand, he examines whether the action brought by SHAPE – an international organisation- seeking the lift of an interim garnishee order falls within the meaning of “civil and commercial matters” laid down in article 1(1) of the Brussels I bis Regulation. On the other hand, he analyses whether the fact that SHAPE had invoked its immunity from execution in the interim relief proceedings has any significance on the above evaluation.

In tackling the first prong of his analysis, AG Saugmandsgaard Øe recalls the public hearing held at the CJEU back in December 2019. There, the focus was put on how the  “civil and commercial” nature of the interim relief measures sought by SHAPE is to be assessed – in the light of the features of the proceedings on the merits, based exclusively on the interim relief proceedings or only in relation to the nature of the rights the interim measures intend to safeguard matters. AG Saugmandsgaard Øe rejects the first two alternatives and follows the thesis supported by the Governments of The Netherlands and Belgium and by the European Commission: in line with the judgments de Cavel I and de Cavel II, the nature of the rights whose recognition is sought in the proceedings on the merits and whose protection is the purpose of the interim or protective measures sought is decisive. (Point 46 and 51)

Furthermore, AG conducts a thorough analysis on the immunities recognised under Public International Law vis-à-vis the application of Brussels Ia. He argues that to determine whether a dispute should be excluded from the scope of BIa on the grounds that it concerns “acts or … omissions in the exercise of State authority” – A1(1) in fine-, it is necessary to assess whether the action is based on a right which has its source in acta iure imperii or in a legal relationship defined by an exercise of State authority. (at 90)

On that basis, he concludes that an action for interim measures such as the one in the present case, seeking the lift of a garnishee order, must be regarded as “civil and commercial” in so far as the garnishee order was aimed to safeguard a right arising from a contractual legal relationship which is not determined by an exercise of State authority. (at 104)

Finally, AG Saugmandsgaard Øe posits that the fact that an international organization as SHAPE has invoked immunity from execution, has no bearing in the assessment of the material application of Brussels Ia. What’s more, it cannot serve as an obstacle for a national court to establish its international jurisdiction based on the aforementioned Regulation.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.2.2.

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Supreme Site Services v Shape: Dutch Appellate Court rules on the merits of immunity and A6 ECHR, takes Luxembourg by surprise.

Update 14 January 2020 see also review by Rishi Gulati here, with cross-references to the postings on gavclaw.com.

With the festive season approaching, I am happy to give the floor to María Barral Martínez, currently trainee at the chambers of Advocate General Mr Manuel Campos Sánchez-Bordona for her update on Supreme Site Services et al v Shape, on which I first reported here.

On 10 December, the Den Bosch Court of Appeal delivered its judgment on the main proceedings of the Supreme et al. v SHAPE case. The case concerns a contractual dispute between Supreme (a supplier of fuels) and SHAPE (the military headquarters of NATO). Supreme signed several agreements (so-called “BOA agreements”) to supply fuels to SHAPE in the context of a military operation in Afghanistan-ISAF-, mandated by the UNSC. Supreme also signed an escrow agreement with JFCB (Allied Joint Force Command Brunssum, a military headquarters subject to SHAPE´s authority) to cover mutual potential payments after the mission/contract termination. In December 2015, Supreme instituted proceedings in the Netherlands against Shape/JFCB requesting the payment of certain costs. Moreover, Supreme sought, in the context of a second procedure, to levy an interim garnishee order targeting the escrow account in Belgium. The latter proceedings -currently before the Dutch Supreme Court- triggered a reference for a preliminary ruling (case C-186/19 « Supreme Site Services»)  as already commented in an earlier post, related to the Brussels I bis Regulation.

In the judgment on the merits, the Appellate Court addressed the Brussels I bis Regulation as well, albeit briefly. The Appellate Court asked parties whether the reference to the CJEU impacts the proceedings on the merits. Both parties were of the opinion that it was not the case. Moreover, the Court itself considered that since Shape and JFCB only invoked in their defence immunity of jurisdiction the parties had tacitly accepted the Dutch court’s jurisdiction.

In regards to the question of immunity of jurisdiction, the Dutch Appellate Court granted immunity of jurisdiction to Shape and JFCB on the basis of customary international law. It found it was inconclusive that immunity of jurisdiction in respect of Shape and JFCB flows from the provisions of the Protocol on the Status of International Military Headquarters Set up Pursuant to the North Atlantic Treaty (Paris Protocol 1952), or the Agreement on the Status of the North Atlantic Treaty Organisation (Ottawa’s Agreement).

On the role of article 6 ECHR, contrary to what the District Court ruled on the judgment under appeal, the Court of Appeal held that Supreme had a reasonable dispute settlement mechanism available to it to submit its claims. Article 6.1 ECHR therefore would not be breached.  It argued that the judge must perform a case by case analysis in order to determine whether the international organisation offers reasonable alternative means to protect the rights enshrined under article 6.1 ECHR, and if needed set aside the immunity of jurisdiction of the international organisation. The Court concluded that the Release of Funds Working Group, which was agreed by the parties to settle any possible contractual differences, can be considered, under Dutch law, as a reasonable dispute settlement mechanism and therefore, the Court has no jurisdiction.

At the public hearing in C-186/19 held in Luxembourg on 12 December, the CJEU could not hide its surprise when told by the parties that the Dutch Appellate Court had granted immunity of jurisdiction to Shape and JCFB. The judges and AG wondered whether a reply to the preliminary reference would still be of any use. One should take into account that the main point at the hearing was whether the “civil or commercial” nature of the proceedings for interim measures should be assessed in the light of the proceedings on the merits (to which interim measures are ancillary, or whether the analysis should solely address the interim relief measures themselves.

Maria.

 

 

 

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Weco Projects ASP v Zea Marine Carier GmbH: provisional measures, court-appointed surveyor’s powers in the light of arbitration.

Genova’s court ruling in Weco Projects ASP v Zea MArine Carier GmbH is remarkably similar to the Belo Horizonte (Cefetra et al v Ms ‘IDA’ Oetker Schiffahrtsgesellschaft MbH & Co KG et al) ruling at the Court of Rotterdam, which I reviewed here. Transport is of a yacht is the issue, sinking the event, and London arbitration the agreed dispute resolution. What powers do the courts in ordinary still have to order interim measures?

The court could have discussed the arbitration /Brussels Ia interface, as well as Article 35’s provisional measures. Instead, it mentions neither and relies entirely on an Italian Supreme Court precedent as Maurizio Dardani and Luca di Marco review excellently here (many thanks to Maurizio for forwarding me the case). An exciting, and missed opportunity to bring these issues into focus.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.15.

 

 

 

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Supreme v Shape: Lifting attachments (‘garnishments’) on assets of international organisations in another state. Dutch Supreme Court refers to CJEU re exclusive jurisdiction, and the impact of claimed immunity.

Many thanks Sofja Goldstein for alerting me a while back to the Hoge Raad’s decision to refer to the CJEU and what is now known to be Case C-186/19. The case concerns SHAPE’s appeal to a Dutch Court to lift the attachment aka ‘garnishment’ of a Belgian NATO /SHAPE escrow account by Supreme Services GmbH, a supplier of fuel to NATO troops in Afghanistan. As Sofja reports, in 2013, Supreme and Allied Joint Force Command Brunssum (JFCB), the Netherlands-based regional headquarters of NATO, set up an escrow bank account in Belgium with the goal of offsetting any contingent liabilities on both sides at the end of Basic Ordering Agreements (BOAs). Supreme Services in 2015 initiated proceedings against SHAPE and JFCB in the Netherlands arguing that the latter parties had not fulfilled their payment obligations towards Supreme. It also attached the account in Belgium.

SHAPE and JFCB from their side seized the Dutch courts for interim relief, seeking (i) to lift the attachment, and (ii) to prohibit Supreme from attaching the escrow account in the future.

The Supreme Court acknowledges the Dutch Courts’ principle jurisdiction at the early stages of the procedure on the basis of Article 35’s rule concerning provisional measures, yet at this further stage of the proceedings now feels duty-bound firstly under Article 27 of Brussels Ia to consider whether Article 24 paragraph 5 applies (Belgium being the place of enforcement of any attachment should it be upheld); further and principally, whether the Brussels I a Regulation applies at all given that SHAPE and NATO invoke their immunity (it is in my view unlikely that the invocation or not of an immunity defence may determine the triggering or not of Brussels Ia), this immunity interestingly being the result of a Treaty not between The Netherlands and NATO but rather resulting from the headquarter agreement between NATO and Belgium.

An interesting example of public /private international law overlap.

Geert.

 

 

 

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Brussels Court of Appeal rejects jurisdiction against Facebook Inc, Facebook Ireland in privacy, data protection case.

Update 17 June 2021 for analysis of the CJEU judgment in same see Lorna Woods here.

Update 10 September 2020 the case at the CJEU is listed as C-645/19.

The Brussels Court of Appeal held early May in a lengthy and scholarly judgment that it sees no ground in either public international law, or European law, for jurisdiction of the Belgian courts against Facebook Ireland and Facebook Inc (Palo Alto, California). I reported on the litigation inter alia here. I believe the Court is right, as readers of the blog know from my earlier postings.

Belgium’s Data Protection Authority (DPA) does not signal the rejection of jurisdiction against FB Ireland and FB Inc in its press release, however even its 3 page extract from the 121 page judgment clearly shows it (first bullet-point).

The questions which the Court of Appeal has sent up to Luxembourg concern Facebook Belgium only. The Court in the full judgment does not qualify FB Belgium’s activities as data processing. However it has very specific questions on the existence and extent of powers for DPAs other than the leading authority under the GDPR, including the question whether there is any relevance to the fact that action has started prior to the entry into force of the GDPR (25 May 2018). The Court is minded to interpret the one-stop shop principle extensively however it has doubt given the CJEU’s judgment in Fanpages. 

Crucial and so far, I believe, fairly unreported. (My delay explained by the possibility for use as an essay exam question – which eventually I have not).

Geert.

(Handbook of) EU private international law, 2nd ed.2016, chapter 2, Heading 2.2.8.2.5.

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Ergo, and Haras des Coudrettes. Provisional measures under Brussels I Recast and Lugano before the French Supreme Court.

Thank you Nicolas Contis and Leonardo Pinto for reporting  judgments by the French Supreme Court (Cour de Cassation) 16-19-731 Ergo Versicherung v Volker and 16-27.913, Haras des Coudrettes v X, both held on 14 March 2018.

The judgments concern the interpretation of Article 35 Brussels I Recast c.q. Article 31 of the Lugano Convention (the second case concerned a defendant domiciled in Switzerland) on provisional measures.

Please refer to Nicolas and Leonardo for a summary of the facts the judicial proceedings in the case. In neither cases do the French courts have subject-matter jurisdiction: in Ergo, the German courts do by virtue of choice of court; in Haras des Coudrettes, the Swiss courts do by virtue of Article 5(3) Lugano (locus delicti commissi being there; and direct damage also having occurred there hence leaving only indirect, financial damage with the French owner of the horse at issue, even if the exact nature and size of those direct injuries could only be later established in France).

In Ergo, the Supreme Court held that ‘la juridiction française (est) compétente pour ordonner, avant tout procès, une mesure d’expertise devant être exécutée en France et destinée à conserver ou établir la preuve de faits dont pourrait dépendre la solution du litige. Appointing an expert to assess any damages caused to a solar plant, and to explore liabilities for such damage, falls within Article 35 Brussels I Recast. I would agree with such a wide reading as I have discussed before in my review of the Belo Horizonte case. The Supreme Court does not consider relevant to the outcome claimants’ argument, that under Article 2 Brussels I Recast, provisional measures only enjoy free movement under the Regulation when ordered by a court with subject-matter jurisdiction. Indeed in view of the Supreme Court the Court of Appeal need not even consider whether it has such jurisdiction. Given that the form Annexed to the Regulation includes a box requiring exactly that, this may seem odd. One assumes the Court held so given that the forensic measures ordered, can be rolled out entirely in France: no need for any travel at all.

In Haras des Coudrettes, the Supreme Court annulled because the Court of Appeal had established subject-matter jurisdiction for the Swiss courts, and had subsequently not entertained the possibility of provisional measures, even though the object at issue (the mare: ‘la jument’) is in France: ‘Qu’en statuant ainsi, alors qu’elle relevait que la mesure sollicitée avait pour objet notamment d’examiner la jument située en France, la cour d’appel, qui n’a pas tiré les conséquences légales de ses propres constatations, a violé les textes susvisés.‘

and  ‘une mesure d’expertise destinée à conserver ou établir la preuve de faits dont pourrait dépendre la solution du litige, ordonnée en référé avant tout procès sur le fondement du second de ces textes, constitue une mesure provisoire au sens du premier, qui peut être demandée même si, en vertu de cette Convention, une juridiction d’un autre Etat lié par celle-ci est compétente pour connaître du fond’:

expert findings which aim at maintaining or establishing facts upon which the eventual solution of the litigation may depend, fall within the scope of provisional measures and may be ordered even before any entertainment of subject-matter jurisdiction. Again, the fact that for the effective roll-out of the provisional measures no other State need be engaged, must have relevance in this assessment.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.15.

 

 

 

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One of those groundhog days. The Brussels Court of First instance on Facebook, privacy, Belgium and jurisdiction.

Update May 2019 the Court of Appeal reportedly has referred to the CJEU. However update 19 June 2019 as I explain here, that referral is on limited issues only. The court has rejected jurisdiction against FB Ireland and FB Inc.

I have flagged once or twice that the blog is a touch behind on reporting – I hope to be on top soon.

I blogged a little while ago that the Brussels Court of Appeal had sided with Facebook in their appeal against the Court of first instance’s finding of Belgian jurisdiction. I had earlier argued that the latter was wrong. These earlier skirmishes were in interim proceedings. Then, in February, the Court of First instance, unsurprisingly, reinstated its earlier finding, this time with a bit more substantial flesh to the bone.

First, a bit of Belgian surrealism. In an interlocutory ruling the court had requested FB to produce full copy of the Court of Appeal’s judgment upon which it relied for some of its arguments. Perhaps given the appalling state of reporting of Belgian case-law, this finding should not surprise. Yet it remains an absurd notion that parties should produce copies at all of Belgian judgments, not in the least copies of a Court of Appeal which is literally one floor up from the Court of first instance.

Now to the judgment. The court first of all confirms that the case does not relate to private international law for the privacy commission acts iure imperii (I summarise). Then follows a very lengthy and exhaustive analysis of Belgium’s jurisdiction on the basis of public international law. Particularly given the excellent input of a number of my public international law colleagues, this part of the judgment is academically interesting nay exciting – but also entirely superfluous. For any Belgian jurisdiction grounded in public international law surely is now exhausted regulated by European law, Directive 95/46 in particular.

In finally reviewing the application of that Directive, and inevitably of course with reference to Weltimmo etc. the Court essentially assesses whether Facebook Belgium (the jurisdictional anchor) carries out activities beyond mere representation vis-a-vis the EU institutions, and finds that it does carry out commercial activities directed at Belgian users. That of course is a factual finding which requires au faitness which the employees’ activities.

Judgment is being appealed by Facebook – rightly so I believe. Of note is also that once the GDPR applies, exclusive Irish jurisdiction is clear.

Geert.

 

 

 

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Belo Horizonte: Court at Rotterdam (using English as language of the oral procedure): Access to seized documents is no provisional measure under Brussels I Recast.

Arnold van Steenderen and Milan Simić have complete and concise review here of judgment of the Rotterdam court of December 2017 in re the Belo Horizonte (officially Cefetra et al v Ms ‘IDA’ Oetker Schiffahrtsgesellschaft MbH & Co KG et al). The case is a follow-up to 2015 proceedings. In these the Rotterdam court had first sanctioned seizure, and then rejected further action for claimant had not formally requested access to the documents.

Arnold and Milan summarise the facts very very helpfully – I am much obliged for the judgment is in Dutch (although as the judgment shows, the proceedings were actually conducted in English: a nice example of the use of regulatory competition in civil procedure) and their efforts have saved me a lot of translation time:

The decisions of the Rotterdam Court are a result of the carriage under bill of lading of soya beans on behalf of Cefetra B.V. (Netherlands based) on board of the “Belo Horizonte” from Argentina to the United Kingdom. Cefetra supplies raw materials to the feed, food, and fuel industries. Cefetra Ltd. (UK based) was the holder of the b/l’s and English law applied to the b/l’s. The vessel is owned by MS ‘IDA’ Oetker and is time chartered by Rudolf A Oetker (both German based, together addressed as Oetker). MS ‘IDA’ Oetker is the carrier under the b/l’s. London arbitration is agreed upon for any dispute rising from the contract of carriage and the b/l’s.

Following engine failure, ‘(d)uring the voyage, experts commissioned by both Cefetra and Oetker visited the “Belo Horizonte” to preliminary assess the condition of the vessel and its engines. Further investigation was conducted upon arrival in England. Oetker, however, only granted permission for inspection of the engine room and refused to disclose the documents on board. Crew interviews were not allowed as well. Subsequently, Cefetra obtained leave to attachment for the purpose of preserving evidence in the Netherlands on 27 October 2015. The leave was effected by the bailiff on 28 October 2015 on board of the “Belo Horizonte”. Several documents were seized and handed over to a sequestrator. Cefetra initiated proceedings’ to gain access to the seized documents.

The dispute in the main is arbitrable in London.

Oetker disputes jurisdiction of the court at Rotterdam on the basis of defendants’ domicile in Germany. Cefetra argue in favour of jurisdiction on the basis of Article 7(1), alternatively 7(2) or indeed Article 35 Brussels I Recast:

  • 7(1) forum contractus: for, it is argued, the main agreement between the two parties implies an obligation to provide any relevant evidence; the place of performance for that ‘obligation in question’ lies in The Netherlands since that is where the sequestrator holds them.
  • 7(2) forum delicti: Oetker’s obstruction of truth finding is a tort which is located (locus delicti commissi) at Rotterdam since that is where Oetker opposes disclosure.
  • 35 provisional, including protective measures.

The Court does not at all entertain Cefetra’s arguments on the basis of 7(1) or 7(2). Wrongly so: plenty of not at all obvious contracts or torts could qualify as same under these provisions. To not address them at all does not make them simply go away.

The court first of all (5.7 in fine) rejects relevance of the arbitration exclusion on the basis of C-391/95 Van Uden Deco-Line. It then sticks to a very restrictive approach to Article 35, with the classic provisionary (not covered by Article 35) v provisional (covered) nature of measures, as also discussed in C-104/03 St. Paul Dairy/Unibel (to which the Court refers). In the words of the court: seizure of evidence is provisional; actual access, copy or extract is not (5.8): the court suggests this is not provisional since it allows the party to gauge the evidentiary position of the party and hence is irreversible.

I disagree -and I have at least a shelf in my library to support the discussion.

Ireversibility in fact (once the evidence seen, the party can never wipe it from its memory, so to speak) does not equate ireversibility in law. The court takes a very limited view of Article 35 and I do not believe it is the right one.

There are not that many national judgments covering Article 35 quite so expressly. This is one to treasure.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.15.

 

 

 

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Not the way the datr cookie crumbles. Belgian courts on soggy jurisdictional grounds in Facebook privacy ruling.

Update 27 June 2017 Before the CJEU Case C-210/16 Wirtschaftsakademie Schleswig-Holstein GmbH v Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein relates to some issues with relevance for the case at hand: in particular the respective powers of various authorities in the Member States with the parent company outside of the EU and one one of the data protection authorities based in the Member State where the company’s establishment is responsible for data processing under the group’s internal division of tasks and responsibilities.

Update 11 July 2016 the Court of Appeal has sided with FB on 29 June. No surprises there! Update 27 June 2017 both initial ruling and the CA’s judgment relate to the provisionary measures. The case is now going through the same courts in ordinary (non-urgent) fashion.

Update 9 February 2016 the French privacy commission has now mirrored the Belgian action

Quite a lot of attention has been going to a Belgian court ordering Facebook to stop collecting data from non-users through the use of so-called datr cookies.  Applicant is Willem Debeuckelaere, the chairman of the Belgian privacy commission, in his capacity as chairman (not, therefore, as a private individual). Our interest here is of course in the court’s finding that it has jurisdiction to hear the case, and that it can apply Belgian law. The judgment is drafted in Dutch – an English (succinct) summary is available here.

Defendants are three parties: Facebook Inc, domiciled in California; Facebook Belgium BVBA, domiciled in Brussels; and Facebook Ireland Ltd., domiciled in Dublin. Facebook Belgium essentially is FB’s public affairs office in the EU. FB Ireland delivers FB services to the EU market.

Directive 95/46 and the Brussels I Recast Regulation operate in a parallel universe. The former dictates jurisdiction and applicable law at the level of the relationship between data protection authorities (DPAs), and data processors (the FBs, Googles etc. of this world). The latter concerns the relation between private individuals and both authorities and processors alike. That parallelism explains, for instance, why Mr Schrems is pursuing the Irish DPA in the Irish Courts, and additionally, FB in the Austrian courts.

Current litigation against FB lies squarely in the context of Directive 95/46. This need not have been the case: Mr Debeuckelaere, aforementioned, could have sued in his personal capacity. If he is not a FB customer, at the least vis-a-vis FB Ireland, this could have easily established jurisdiction on the basis of Article 7(2)’s jurisdiction for tort (here: invasion of privacy): with Belgium as the locus damni. Jurisdiction against FB Inc can not so be established in the basis of Article 7(2) (it does not apply to defendants based outside the EU). If the chairman qq natural person is a FB customer, jurisdiction for the Belgian courts may be based on the consumer contracts provisions of Regulation 1215/2012 – however that would have defeated the purpose of addressing FB’s policy vis-a-vis non-users, which I understand is what datr cookies are about.

Instead, the decision was taken (whether informed or not) to sue purely on the basis of the data protection Directive. This of course requires application of the jurisdictional trigger clarified in Google Spain. German precedent prior to the Google Spain judgment, did not look promising (Schleswig-Holstein v Facebook).

At the least, the Belgian court’s application of the Google Spain test, is debatable: as I note in the previous post,

Article 4(1)(a) of Directive 95/46 does not require the processing of personal data in question to be carried out ‘by’ the establishment concerned itself, but only that it be carried out ‘in the context of the activities’ of the establishment (at 52): that is the case if the latter is intended to promote and sell, in that Member State, advertising space offered by the search engine which serves to make the service offered by that engine profitable (at 55). The very display of personal data on a search results page constitutes processing of such data. Since that display of results is accompanied, on the same page, by the display of advertising linked to the search terms, it is clear that the processing of personal data in question is carried out in the context of the commercial and advertising activity of the controller’s establishment on the territory of a Member State, in this instance Spanish territory (at 57).

Google Spain’s task was providing support to the Google group’s advertising activity which is separate from its search engine service. Per the formula recalled above, this sufficed to trigger jurisdiction for the Spanish DPA. Google Spain is tasked to promote and sell, in that Member State, advertising space offered by the search engine which serves to make the service offered by that engine profitable. The Belgian court accepts jurisdiction on the basis of Facebook Belgium’s activities being ‘inseparably linked’ (at p.15) to Facebook’s activities. With respect, I do not think this was the intention of the CJEU in Google Spain. At the very least, the court’s finding undermines the one stop principle of the data protection Directive, for Belgium’s position viz the EU Institutions means that almost all data processors have some form of public interest representation in Belgium, often indeed taking the form of a BVBA or a VZW (the latter meaning a not for profit association).

The court further justifies (p.16) its jurisdiction on the basis of the measures being provisionary. Provisionary measures fall outside the jurisdictional matrix of the Brussels I (Recast), provided they are indeed provisionary, and provided there is a link between the territory concerned and the provisional measures imposed. How exactly such jurisdiction can be upheld vis-a-vis Facebook Ireland and Facebook Inc, is not clarified by the court.

The court does limit the provisionary measures territorially: FB is only ordered to stop using datr cookies tracking data of non-FB users ‘vis-a-vis internetusers on Belgian territory’, lest these be informed of same.

I mentioned above that the data protection Directive and the Brussels I recast can be quite clearly distinguished at the level of jurisdiction. However findings of courts or public authorities on the basis of either of them, do still face the hurdle of enforcement. That is no different in this case. Recognition and enforcement of the judgment vis-a-vis FB Inc will have to follow a rather complex route, and it is not inconceivable that the US (in particular, the State of California) will refuse recognition on the basis of perceived extraterritorial jurisdictional claims (see here for a pondering of the issues). Even vis-a-vis Facebook Ireland, however, one can imagine enforcement difficulties. Even if these provisionary measures are covered by the Brussels I Recast (which may not be the case given the public character of plaintiff), such measures issued by courts which lack jurisdiction as to the substance of the matter, are not covered by the enforcement Title of the Regulation.

All in all, plenty to be discussed in appeal.

Geert.

 

 

 

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